Always Fight Back
Lessons from Lawfare in the US District of Colorado
You’ve no doubt heard that “election deniers” are the greatest “threat to democracy.” It’s a cool story, but the United States District Court of Colorado shattered this narrative last month, entering judgement against a group of Plaintiffs making this assertion – and awarding costs to the Defendants.
I know, because I was one of the Defendants.
I represented myself Pro Se before the Court in the abridged trial that commenced on July 15, 2024 – abridged, because the Court ended the Plaintiffs’ charade early.
We prevailed with a Judgement Based on Partial Findings, or Rule 52(c), which means we won at halftime and weren’t required to bring our case in chief.
NAACP et al vs. USEIP et al was an unprecedented attack on the First Amendment by the leftist lawfare machine, under the guise of “fighting voter suppression.” Three so-called civil rights organizations – CO/MT/WY Area Conference of the NAACP, League of Women Voters Colorado, and Mi Familia Vota – asked the Court to find us, the Defendants, liable for voter suppression and voter intimidation, coercion, and threats.
They didn’t like so-called “election deniers” having access to the First Amendment.
The NAACP and other plaintiffs filed their baseless allegations on March 9, 2022, with two charges under Section 11(b) of the Voting Rights Act of 1965, and one charge under the Ku Klux Klan Act of 1871.
They had no evidence, and I know it sounds hyperbolic to say “no evidence” when talking about a case that went all the way to trial. So, don’t take my word for it.
Take the Court’s:
“In sum, plaintiffs have failed to introduce any evidence that can remotely be perceived as intimidating or threatening on behalf of the three defendants.”
– Judge Charlotte Sweeney, United States District of Colorado
So how does a case with no evidence go to trial, despite the multiple checks against tortious abuse that are baked into the Federal Rules of Civil Procedure?
Simple. They lied.
The civil rights organizations alleged – before a court of law and publicly in the media – that USEIP and the named defendants were, “Planning to, threatening to, and actually deploying armed agents to knock on doors throughout the state of Colorado,” with “the purpose and effect of intimidating Coloradans from voting, trying to vote, helping others to vote, supporting or advocating for certain political beliefs.”
There was never any evidence of any of this. This case was never about voter intimidation.
This case was always about a leftist fever dream, where questioning the outcome of an election and knocking on doors is inherently intimidating. This is a deeply concerning assault on the First Amendment.
Election Denial is Not Intimidation… It’s Normal
Plaintiffs’ theory of the case conflates questioning an election and door-to-door canvassing as inherently intimidating conduct – without establishing any objectively intimidating act.
To show how truly unprecedented this was, a quick history lesson:
Questioning the outcome of elections has a long history in the United States of America prior to 2020, from 1800 to 2016. Importantly, the American People’s questioning of the outcomes of US elections have led to many reforms over many decades to strengthen and protect the electoral franchise.
The 1800 US Presidential election between Thomas Jefferson and incumbent President John Adams was sent to the House of Representatives, and, after 36 rounds of voting, the body elected Jefferson. This outcome of this election inspired the creation of the 12th Amendment.
The 1824 US Presidential election of John Quincy Adams went to the House of Representatives when no candidate earned a majority of electoral votes. This race was also decided after 36 ballots, in the new US capitol building — not at the ballot box.
The 1860 US Presidential election tore the nation apart, with South Carolina voting to secede just a few weeks after Lincoln’s victory. This election was unprecedented, as Lincoln’s name was eliminated from the ballot in 10 Southern States, effectively denying him the opportunity to win those states’ electoral votes. Sounds familiar. This election was reported as unprecedented at the time.
The next election in 1864, during the Civil War, brought the introduction of mail-in ballots. Many argued the mail-in system was vulnerable to manipulation, allowing fraudulent votes to be cast and potentially altering the outcome of the election.
Tammany Hall’s William “Boss” Tweed rose to power in NY in 1863, and by 1871, Tweed’s corruption and abuse of power had become widely known.
According to Tweed Biographer, Kenneth D. Ackerman, “It’s hard not to admire the skill behind Tweed's system ... The Tweed ring at its height was an engineering marvel, strong and solid, strategically deployed to control key power points: the courts, the legislature, the treasury and the ballot box. Its frauds had a grandeur of scale and an elegance of structure: money-laundering, profit sharing and organization.”
Notably, Tweed punished those who questioned his electoral practices. He died in prison in 1878.
Clearly, election denialism is often a response to election fraud.
In 1876, in the name of preventing another Civil War, the Congress established a 15-member commission to decide the election between Samuel Tilden and Rutherford B. Hayes. The commission chose Hayes, and Southern Democrats made sufficient threats that a compromise was decided in February 1877 to prevent another Civil War.
That compromise effectively ended Reconstruction, as Hayes agreed to remove all federal troops from the South.
By 1888, “ballot fraud was so common, it developed its own vocabulary. ‘Colonizers’ were groups of bought voters who moved en masse to turn the voting tide in doubtful wards. ‘Floaters’ flitted like honeybees wafting from party to party, casting ballots in response to the highest bidder. ‘Repeaters’ voted early and, sometimes in disguise, often. In Indiana, the absence of any voter registration especially invited such doings.”
In the wake of that election, Grover Cleveland “called upon good citizens everywhere, to rise above ‘lethargy and indifference,’ to ‘restore the purity of their suffrage.’”
That “election denialism” in response to fraud led to a ballot-reform effort, which overwhelmed state legislatures, and, by 1892, citizens in 38 states voted by secret ballot.
More recently, in 1948, the power of the media establishment over our elections came sharply into focus, with the ill-fated Chicago Tribune headline “Dewey Defeats Truman.”
According to the media, President Harry S. Truman was deeply unpopular, in divided government with a Republican Congress, and facing a dismal approval rating: Only 1 in 3 Americans approved of Truman, and Truman believed he’d lost on election night.
But the media got it wrong. Truman won.
In 2000, the media got it wrong again, as mainstream broadcast media announced that Vice President Al Gore had won the state of Florida – when it was still too close to call. Recounts awarded the state to George W. Bush, and lawsuits were filed. The election was decided when the US Supreme Court ruled to stop the Florida recount on the grounds that it violated equal protections.
The Bush v. Gore controversy led to the Help America Vote Act (HAVA), legislation signed in 2002 to modernize US elections. HAVA gave birth to the elections industry, and US elections have become increasingly centralized and dependent on private vendors with little meaningful oversight ever since.
Importantly, since the passage of HAVA, no Presidential election has been held without allegations of irregularities, fraud, and corruption — on both sides of the political aisle.
In 2004, Democrat John Kerry raised concerns about voter access, claiming eligibility requirements suppressed the vote to such an extent that it may have affected the outcome of the election. In 2008, ACORN community organizers had to admit that of the 1.3 million new voters they registered, only a third (450,000) were legitimate. In 2012, according to Pew Research Center’s “2012 Survey of the Performance of American Elections,” nearly 20 million voters experienced at least one problem when voting in the 2012 presidential election.
And that brings us to 2016.
In 2016, Secretary of State Hillary Clinton was unexpectedly defeated on election night by Donald J. Trump. In the wake of this election, Democrats claimed President Trump had “colluded” with Russia to steal the election, and launched the Mueller investigation – an endeavor that cost taxpayers millions and found no evidence of collusion. Clinton subsequently wrote an election-denying book and went on a speaking tour.
Democrats also created the movie Kill Chain: The Cyber War on America’s Elections, about the vulnerabilities of our centralized, technology-enabled voting system.
They brought lawsuits, including Curling v. Raffensberger, which is still in court in Georgia today. They referred to President Trump as illegitimate throughout his Presidency.
Specific to the case against USEIP, the League of Women Voters, a plaintiff, published, “The 2016 Presidential Election was Rigged” on November 23, 2016.
On inauguration Day on January 20, 2017, “Free Speech For People,” counsel for the plaintiffs, launched a campaign to impeach the President, announcing the effort in a Washington Post article entitled, “The Campaign to Impeach President Trump Has Begun.”
Election denialism is not inherently intimidating and has a long, well documented, and fully protected history in America.
Canvassing is Also Not Intimidation
Canvassing is not inherently intimidating. All Plaintiff organizations engage in political canvassing as a matter of business.
Grassroots organizing requires it.
The ACLU has created practical advice for canvassers to know their rights. The case law for infringing upon canvassers undoubtedly protects this right. You can read the history and case law of canvassing in my Trial Brief, which was filed with the Court prior to trial.
To summarize:
Election denying is not intimidating.
Canvassing is not intimidating.
Election deniers engaging in canvassing is, also, not intimidating.
It’s only a problem when it involves 2020 and President Trump.
That’s a fine, albeit misguided, position to hold in the media — and the First Amendment protects it. But it’s another matter entirely for three civil rights organizations, two law firms, and at least six attorneys to make that case, without any evidence, in a court of law.
One would assume they’d know better, especially since we’re talking about rights.
Evidence of intimidation never materialized in these proceedings – not during discovery; not in the two and a half years of motions, replies and responses; and, not at trial.
That means it’s a frivolous claim.
How Did We Get Here?
Plaintiffs’ novel legal theory appears derived from a 2015 publication from the NYU Social Justice Law Review titled: “Voters Strike Back: Litigating against Modern Voter Intimidation.” In fact, the plaintiffs’ Expert Witness cited “Voters Strike Back” in his official report.
“Voters Strike Back” advances a novel theory that “section 11(b) was a deliberate attempt to expand the existing laws against voter intimidation, including by eliminating any legal requirement of racial targeting” and that “today… voters are deterred from voting through subtler tactics, such as aggressive poll-watching, anonymous threats of harm, frivolous and excessive voter registration challenges, and coercion by employers.”
This paper suggests—and the Plaintiffs’ case theory insisted—that voter intimidation has changed to include things like Trump supporters questioning the outcome of elections and/or knocking on doors.
Importantly, the tactics suggested within this article are objectively unethical, and they closely mirror the Plaintiffs’ conduct in this case.
Consider:
“Another reason to bring a KKK Act claim is for the purpose of political messaging. Liability under the Act carries the additional stigma of conspiracy and its association with the KKK’s legacy of politicalized racism.”
“…the [KKK] Act creates the opportunity to brand a particular ballot security group or party committee with these deeply embarrassing associations…the threat of such associations could strengthen the law’s deterrent effect and help drive settlement.”
“…success is defined as stopping the defendant’s conduct.” — NYU Social Justice Law Review, “Voters Strike Back: Litigating against Modern Voter Intimidation
Plaintiffs did “stigmatize” and “brand” us “with these deeply embarrassing associations.” They did attach to us “the additional stigma of conspiracy and its association with the KKK’s legacy of politicalized racism.”
The lone plaintiff representative that testified at trial admitted that their overriding goal was “stopping the Defendant’s conduct.”
Our conduct was entirely lawful. They just didn’t like our ideas.
To understand how truly egregious this litigation was, consider the lone witness that claimed (1) to be approached by USEIP, and (2) to have been intimidated by whomever was at her door.
In a dramatic moment at trial, this witness admitted, under oath on the stand, that she only named “USEIP volunteers” at the suggestion of the Plaintiffs’ attorney.
Again, don’t take my word for it.
Take the Court’s:
“It was upon suggestion apparently from plaintiffs' counsel that USEIP was the group canvassing in her county that she got – at which point she adopted that position and included it in her affidavit.”
– Judge Charlotte Sweeney, United States District of Colorado
An affidavit in a legal proceeding is signed under pain and penalty of perjury. This affidavit was filed with the Court, by the Plaintiffs, to beat the Defense’s Motion for Summary Judgement in December 2022.
They coached a witness, who had never heard of the Defendants, to name the Defendants in order to keep the case going.
And it did keep going, for 208 days.
This finding from the Court is a damning rebuke of both the civil rights organizations and their lawyers. I’m sure the irony is not lost on Badlands’ readers.
The Bottom Line
Their claims were frivolous. They were always frivolous. The Court ended the planned five-day trial after just three days, and awarded us costs.
It’s not hard to imagine having your name attached to the KKK by the most well-known civil rights organizations in the country. It impacted my reputation, my career, my family, and my sanity. Costs don’t even begin to cover it.
Still, prevailing so substantially – that is, complete vindication in United States Federal Court – affirmed my faith in justice.
But justice doesn’t just happen. You must show up and fight for it. It’s up to every one of us to be brave, stand up, and defend our liberties.
In my experience, it’s worth it.
Badlands Media articles and features represent the opinions of the contributing authors and do not necessarily represent the views of Badlands Media itself.
If you enjoyed this contribution to Badlands Media, please consider checking out more of Ashe’s work for free at Ashe in America.
Badlands Media will always put out our content for free, but you can support us by becoming a paid subscriber to this newsletter. Help our collective of citizen journalists take back the narrative from the MSM. We are the news now.
Congratulations, Ashe! I heard about your victory, even read about it but did not connect it to our 'Ashe in America' at the time.
Your close reminds me of the timeless closing words of Ronald Reagan's 'Encroaching Control' speech, given March 30, 1961 before the Phoenix Chamber of Commerce:
"Our Founding Fathers, here in this country, brought about the only true revolution that has ever taken place in man's history. Every other revolution simply exchanged one set of rulers for another set of rulers. But only here did that little band of men so advanced beyond their time that the world has never seen their like since, evolve the idea that you and I have within ourselves the God-given right and the ability to determine our own destiny. But freedom is never more than one generation away from extinction. We didn't pass it on to our children in the bloodstream. The only way they can inherit the freedom we have known is if we fight for it, protect it, defend it and then hand it to them with the well thought lessons of how they in their lifetime must do the same. And if you and I don't do this, then you and I may well spend our sunset years telling our children and our children's children what it once was like in America when men were free."
-- https://archive.org/details/RonaldReagan-EncroachingControl
Thanks for fighting the good fight, Ashe.
Brava, Ashe! Hope this article gets wide circulation. Local story with critical national implications. As you said, " ... justice doesn’t just happen. You must show up and fight for it. It’s up to every one of us to be brave, stand up, and defend our liberties." Amen!